Bench Memos

NRO’s home for judicial news and analysis.

Retaliation Rulings—An Overview


My initial read of the Court’s rulings in Gomez-Perez v. Potter and CBOCS West, Inc. v. Humphries is that they provide distressing case studies of how easily incoherent liberal precedents can become entrenched.  Here’s a very brief sketch, with some further comments in a follow-up post:


1.  In 1969, in Sullivan v. Little Hunting Park, a “highly elliptical” (in the charitable words of dissenting justice Harlan) majority opinion by Justice Douglas ruled that a white plaintiff had “standing” to bring an action under 42 U.S.C. 1982 for “an alleged discrimination against a Negro family in the use of certain community facilities.” 

2.  In 2005, in Jackson v. Birmingham Board of Education, the Court, by a 5 to 4 vote, ruled that Title IX—which prohibits recipients of federal education funding from discriminating “on the basis of sex”—authorizes a private cause of action for claims of retaliation “where the funding recipient retaliates against an individual because he has complained about sex discrimination.”  Justice O’Connor’s majority opinion read Sullivan as standing for the proposition that “a general prohibition on racial discrimination [covers] retaliation against those who advocate the rights of groups protected by that prohibition,” and it implausibly imputed that same reading to the Congress that enacted Title IX three years after Sullivan was decided.  According to O’Connor, “retaliation is discrimination ‘on the basis of sex’ because it is an intentional response to the nature of the complaint:  an allegation of sex discrimination.” 

In his dissent, Justice Thomas explained his position that a “claim of retaliation [for having complained about sex discrimination] is not a claim of discrimination on the basis of sex” and that a retaliation claim is instead “a claim that aids in enforcing another separate and distinct right.”  He also presented Sullivan as a holding about a white lessor’s “standing to assert the right of a black lessee to be free from discrimination,” not about a freestanding claim of retaliation.  Chief Justice Rehnquist, Justice Scalia, and Justice Kennedy joined Thomas’s dissent.


3.  In Gomez-Perez v. Potter, Justice Alito relied on Jackson—and on Jackson’s reading of Sullivan—to hold that a federal employee who alleges that she has been retaliated against for filing an age-discrimination claim may bring a retaliation claim under the Age Discrimination in Employment Act.  Building on Jackson’s highly dubious assertion that the Congress that enacted Title IX must have shared the Jackson Court’s reading of Sullivan, Alito observed, “We see no reason to think that Congress forgot about Sullivan during the two years that passed between the enactment of Title IX in 1972 and the enactment of [the relevant ADEA provision] in 1974.”  As for the arguments in Justice Thomas’s dissent in Jackson:  “[T]hat view did not prevail.  And [the government] does not ask us to overrule Sullivan or Jackson.  Nor does [it] question the reasoning of those decisions.”  Justice Kennedy, who had joined Thomas’s dissent in Jackson, joined Alito’s opinion.  And even Chief Justice Roberts, in dissent, acquiesced, “as a matter of stare decisis,” in the Jackson majority’s reading of Sullivan.


4.  In CBOCS West, Inc. v. Humphries, the Court ruled, largely “upon principles of stare decisis,” that a post-Civil War statute, 42 U.S.C. 1981(a), “encompasses a complaint of retaliation against a person who has complained about a violation of another person’s contract-related ‘right.’”  Justice Breyer’s majority opinion was on behalf of seven justices, including the Chief Justice, Justice Kennedy, and Justice Alito.


Justice Thomas’s dissent powerfully argues that retaliation claims are based on conduct, not status (a distinction recognized in a 2006 ruling), that Jackson was wrong, and that the majority misreads Sullivan.

Tags: Whelan

Wrong Again, George


When I started reading George Will’s column this morning, I thought I might finally be on board with a writer I’ve been criticizing much of late.  Will goes after John McCain again, this time zeroing in on a very bad idea the candidate has floated.

McCain’s speech of May 15 in Columbus, Ohio, contained some promises that would be best forgotten if he becomes president–e.g., “I will hold weekly press conferences.”  (Please, no!)  The one that exercises Will, and it is arguably the worst of the lot, is this one: “I will ask Congress to grant me the privilege of coming before both houses to take questions, and address criticism, much the same as the Prime Minister of Great Britain appears regularly before the House of Commons.”  Alas, Will opposes this for the wrong reason, and in doing so exposes the muddled thinking induced by his recently acquired prejudice against executive power.

Will is right that the reason “Question Time” works for the British and wouldn’t work here is that our system has a separation of powers and theirs lacks it.  But he concludes that the breach of that separation that would occur with an American version of Question Time would redound to the benefit of the modern “plebiscitary presidency,” while “reducing Congress to a prop in a skit of president-centrism.”  Recalling that George Washington delivered a personal “State of the Union” message to Congress, that Jefferson abandoned this for the written Annual Message, and that Woodrow Wilson revived the personal oratorical occasion in the modern era as part of his aggrandizement of the presidency, Will concludes that a presidential Question Time would have a similar effect, as “a spectacle that further miniaturizes Congress.”*

But this misses the very different natures of these two kinds of occasions.  The State of the Union address is a solo act, a monologue punctuated by inarticulate roars and hisses from the assembled solons of Congress.  But Question Time would be, as it is in London, a true colloquy, in which the president subjects himself to badgering, hectoring, grandstanding from congressional blowhards (think Joe Biden), lowering himself to being just one among many voices in the room, and thus harming one of the principal characteristics of the presidential office–the strength that comes from its unity.

The colloquy works in Britain without (usually) diminishing the stature of the prime minister, for a couple of reasons.  First, he is a legislator, and comes before the body as first among equals in some sense.  Second, he stands up in the chamber as prime minister solely because he represents the majority party and probably was instrumental in making it the majority.  He can therefore count on that majority’s support on all important questions (again, usually), and depend on his partisans to bray more loudly than the opposition.  Britain’s is a “party government,” which, despite the ambitions of Woodrow Wilson and many political scientists who followed him, America’s system has never been.  Even when both houses of Congress are controlled by the president’s party, there is no true “party government” here.  And when the opposition party controls the legislature, the executive would be a fool to come before it for any form of freewheeling colloquy.  That is Congress’s playing field, and the president would be best advised to stay off that turf.

There is a more instructive example from George Washington’s presidency that proves the point opposite to Will’s.  Once, in his first term as president, Washington sat with the Senate in order to seek its advice and consent on a treaty with the Creek Indians.  After two days of blather and boredom, with no control over the proceedings and feeling more undignified by the minute, Washington left, never to return for such a ghastly adventure.  Careful to attend to his office’s authority and effectiveness–which were reinforced by its dignified aloofness from the folderol of congressional debate–Washington understood something that has so far escaped John McCain.  More to the point, it entirely escapes George Will, who in his current frame of mind (sometimes seeming like he’s channeling the more dubious arguments of Arthur Schlesinger, Jr.’s Imperial Presidency), ought actually to be for this terrible idea, since it would cut the presidency down to size.

Not that there isn’t something to worry about in the Wilsonian project.  But George Will is completely off the rails on this subject.  Much better insight can be found in a review essay by the indispensable Michael Uhlmann in the latest Claremont Review of Books (so far viewable only by subscribers), where Will might learn to distinguish between Alexander Hamilton’s energetic executive (good) and Woodrow Wilson’s plebiscitary presidency (bad).

*Academic aside: Will relies in part on the work of Jeffrey K. Tulis, whose 1987 book The Rhetorical Presidency is already something of a classic.  As good as it is, though, Tulis’s book overstates its case, and should be balanced by reading David K. Nichols’s 1994 book The Myth of the Modern Presidency.


Retaliation Rulings


I’ve been sidelined and haven’t yet had occasion to read with care the Supreme Court’s rulings on Tuesday holding that two separate laws prohibit an employer from retaliating against an employee who complains of unlawful discrimination.  It’s striking, though, that even the Washington Post’s house editorial calls both rulings “deeply flawed”:   “Protecting employees from retaliation makes sense, but it is not the province of judges to create such protections on the basis of their own beliefs of what is right or wrong, or even on the basis of their intuitive sense of what Congress meant to do or should have done.”  In crude political labeling, the Post thus positions itself to the right of both Justice Alito (who authored one of the rulings and joined the other) and Chief Justice Roberts (who joined one of them and dissented in the other).  So much for the “unbreakable” “right-wing phalanx” of leftist mythology.

Tags: Whelan

Matt on the Mark


About an hour ago I sat down with a cup of 100 proof coffee and turned to the latest NY Times “analysis” of the candidates on judges. Half-way through I put aside the caffeine and reached for Jack Daniels. But, then, I read Matt Franck’s vivisection of Neil Lewis’s Ode to Obama, and put away the Jack. Matt nails it. Nothing more of substance needs to be said.

There is a point of emphasis, however, which cannot be overemphasized. It is the central theme of Matt’s demolition job, because it is the central theme of Lewis’s apology for Obama. It is not, precisely, Lewis’s clumsy effort to protect Obama from guilt by association with the dread “L” word, studiously using the “progressive” label, and deftly quoting liberal law professors who say that Obama is just plain fine. Except that you have to know that Cass Sunstein is a liberal; Lewis does not tell you that, either. It is, more exactly, the utterly gratuitous and undeserved attachment of the adjective “conservative” to every thought and word and action of candidate McCain on the subject of judges. Matt says that McCain never used the word “conservative” in his Wake Forest speech. And my guess is that if you did a Lexis/Nexis search for utterances by — as opposed to about — John McCain for close proximity to the words “judges” and “conservative,” you would come up with a very short list. Heck, if you did such a search before, say, three months ago when he became the nominee apparent — and thus became a bulls-eye for liberal media — you’d probably get a short list too.

The gratuity is objectionable on many grounds, not least that it smacks of cowardice. Why can’t we just argue this judges’ thing out on the merits, in a fair fight about what what’s right and wrong in the very different approaches to judges’ craft on offer? Could we just discuss the matter of courts according to the ethical rules which govern discussion in courts: no knowing misrepresentations of either fact or law?

Apparently not. At least since the Bork confirmation hearing, “progressive” Senators, profs, and pundits have been cheating. They have consistently sidestepped open and honest debate about what judges ought to do. They have resorted instead to sleazy cheap shots. Bork was not “wrong”; he was “out of the mainstream” and could scarcely wait to sign a search warrant for your bedroom. Reagan, Bush and (now) McCain do not do what they say they do — which is to appoint judges who understand their job rightly, soundly, correctly. They instead appoint “conservatives” who will “roll back” rights and revolutionize our law. “Progressives” thus invite listeners to stop listening to McCain. After all, what’s the point of debating with someone who does not know his own mind, or who dissembles, or both? To the extent that Obama does not concede that cases can be and should be decided rightly (even, uneventfully) on the basis of mainstream legal analysis, he is a judicial populist. His difference maker (albeit in a small number of bellwether cases) is empathy for the underdog. For Obama, John Roberts is unqualified because Roberts does not feel the little guy’s pain. But how is this charge to be engaged, and rebutted? What if Roberts swears that he once used an outhouse? Does Obama’s infamous thirty-seven — 37!!! — bowling score prove that he is a populist imposter?

In the Brooklyn neighborhood where I grew up, it would.

“Balance” on the Court--and in the Times


Today in the New York Times, reporter Neil A. Lewis reviews the action so far on the judicial front in the presidential campaign.  There are wonders aplenty in this article–that is, you’ll wonder how anyone could pack so many distortions into one news article.  Here goes:

1.  John McCain is repeatedly described as dedicated to putting “conservative” judges on the courts.  I haven’t seen any speech in which McCain is on record as saying any such thing; perhaps he has spoken this way off the cuff once or twice.  But in his only major address devoted exclusively to this subject–at Wake Forest on May 6–McCain never uttered the word “conservative” at all.  In that speech he makes it pretty clear that he wants non-ideological judges, neither liberal nor conservative, who bring no political considerations to their judging, leaving that to the people and their elected representatives.  In his best line in that speech, McCain said he will appoint “jurists of the highest caliber who know their own minds, and know the law, and know the difference.”

2.  By contrast, Barack Obama is never once described by Lewis as desiring to put “liberals” on the bench.  But he would, says Lewis, “look to name judges with an expansive, progressive view of the Constitution.”  That’s reporter Lewis talking, not quoting someone.  For these adjectives we may fairly read “liberal,” the ideology that dare not speak its name.  But does anyone doubt that “expansive” and “progressive” are terms of approbation?  By contrast, Lewis puts “activist judges” in scare quotes when discussing McCain’s views.  It really is a quotation from McCain’s May 6 speech, but the phrase is so ordinary the punctuation could have been omitted.  The message from Lewis seems to be: Really there’s no such thing, don’t you know?

3.  Obama is said, early in the article, to have been so far “less explicit” about his views on judicial appointments than McCain has been.  By the time Lewis gets around to Obama’s desire for judges with that “expansive, progressive view,” however, this becomes something the Illinois Wunderkind has “made clear.”  So Obama has been clear without being explicit.  Yes, this we’re getting used to, aren’t we?

4.  Lewis likens McCain to Ronald Reagan and the current President Bush, but in an audacious rewriting of history, describes Reagan and Bush, both non-lawyers like McCain, as “enthusiastic instruments of those conservative lawyers who were diligent in choosing conservative judicial nominees.”  I don’t think any of the lawyers involved in Republican administrations’ judicial nomination efforts over the last three decades would for a moment consider describing these presidents as “instruments” and themselves as the Svengalis.  The relation of user to used would rather be the other way around–as it should be.

5.  But that cheap shot is just the set-up for the biggest howler in this article.  This time Lewis defers to a source, Chicago law prof and Obamaniac Cass Sunstein, probably because of a failure of nerve on Lewis’s own part to tell this whopper himself.  Sunstein tells Lewis, “[t]he first thing to know” about Obama “is that he knows this stuff inside and out, and he has the credentials to be easily appointed to the court himself.”  Perhaps Sunstein wants to change the subject from the ongoing discussion whether Obama has the credentials to be president.  But this is ridiculous.  For about a decade Obama taught part-time at the U. of Chicago law school, a class or two each year in constitutional law subjects, winding up with the wildly misleading title “senior lecturer,” one shared by really accomplished faculty such as Judge Richard Posner.  Obama has published exactly nothing on the subject.  Even when he was elected editor of the Harvard Law Review he published nothing at all, perhaps the first of the modern student editors to remain silent in print throughout his tenure.  When he does speak on the subject he betrays no hidden depths of knowledge about the law.  (To Planned Parenthood last summer he opined, predictably, that “a woman’s right to make a decision about how many children she wants to have and when–without government interference–is one of the most fundamental freedoms we have in this country”–this in criticism of the Supreme Court’s deference to Congress in Gonzales v. Carhart earlier last year.)  I can confidently say that no recent Democratic president, nor any of the rivals Obama has vanquished in this year’s race for the party’s nomination, would ever have thought for one minute of appointing Barack Obama to the Supreme Court.  The suspicion strongly arises that Cass Sunstein would dearly love such an appointment himself, else why butter up the candidate so unctuously?

6.  Throughout the article Lewis keeps repeating that there is some “current conservative dominance of the courts.”  Yeah, sure.  There are a lot of Republican appointees, but that ain’t the same thing.  Ever heard of Warren, Brennan, Blackmun, Powell, Stevens, O’Connor, Kennedy, Souter?  Republican appointees all, and not a reliable “conservative” in the bunch, and worse yet, not a reliable non-ideologue among them either.  Lewis quotes another “expert” here, David Yalof of the U. of Connecticut, who utters this non sequitur: “There’s been an ideological imbalance on the courts, given that Republicans have controlled the White House for 20 of the last 28 years.”  Yalof “has written extensively about the judicial-appointment process,” Lewis reports.  True, and his work’s not half bad on that subject, if somewhat politically slanted.  But Yalof cannot be paying attention to what the Supreme Court actually does and continue to push the thesis that there’s some “ideological imbalance” in favor of conservatism.

Here’s a simple test that even the New York Times ought to understand.  Whether you inaccurately call the struggle against it “conservative” or not, as long as Roe v. Wade remains the law of the land, there has been no decisive victory over the hegemony of liberal judicial activism.


An Idyll


I have been AWOL from Bench Memos for a week by both choice and circumstance. The choice was one I made months ago to teach a seminar in South Carolina. The circumstance was that the seminar was so lively and engrossing that I had not a moment for communication with the outside world. Or, perhaps I should say, that I chose not to try. It was that much fun.

The Seminar topic was “Philosophical and Political Foundations of the American Republic.” My partner in leading the discussions was Brad Wilson, Associate Director of Princeton’s James Madison Program in American Ideals and Institutions. (Many readers know that the brilliant scholar Robert George is head of that program.) Brad proved to be a terrific teacher; he made me look good by comparison in just one way: I chose him. The seminar participants were ten very sharp business and professional people. We read together the Declaration of Independence, the Federalist, and the Constitution.

The Seminar’s pupose was to re-create the world the founders inhabited and which they tried to preserve (in broad outline) for their descendants. I think the consensus (but not universal) view of those present was that the founders built very well indeed, but also that their world is just about unretrievably gone. The question we debated at Seminar’s end was, in fact, whether globalization had rendered the founders’ ideas irrelevant. I think that the house ended up undivided on the resolution.

Our nonpareil host was a (much) larger than life polymath named Buckley. Reid Buckley that is, youngest of the Buckley Boys.The Seminar is part of the regular programming of the Buckley School for Public Speaking, in Camden, South Carolina, a dear old town which is an integral part of the whole Buckley School experience. This Camden is a lot different than the one in New Jersey. In this Camden they call any house built since 1920 “new construction.” In this Camden you can have lunch at the antebellum mansion of Civil War diarist Mary Boykin Chestnut, and dinner in the Lord Cornwallis House. (He’s the very decent chap who threw the Revolution our way.) In this Camden — and if you are lucky — you can share cocktails at Reid’s house with NRO columnist Kathleen Parker, as we did a few nights ago.

So where is this post going? To a book which I discovered on Reid’s desk, which I then bought at the airport Borders, and which I have not put down since. It is a marvelous read, and a book everyone reading these words should get. The book is called An American Family: The Buckleys. The author knows more than a little about his topic. His name is Reid Buckley.

Novak Unmasks Sebelius


The “moderate” governor gives new meaning to the expression “bleeding Kansas.”

This Week in Liberal Judicial Activism—Week of May 26


Golf, “gamete-providers”, and gobbledygook:
May 29

1992—According to Jan Crawford Greenburg’s Supreme Conflict, Justice Anthony Kennedy writes a note to Justice Harry Blackmun asking to meet him “about some developments in Planned Parenthood v. Casey … [that] should come as welcome news.”  The news is that Kennedy is retreating from his conference vote to apply a deferential standard of review to the abortion regulations under challenge.  One month later, Justices O’Connor, Kennedy, and Souter issue a joint opinion in Casey that is breathtaking in its grandiose misunderstanding of the Constitution and of the Supreme Court’s role.  (More on this in a month.)

2001—Does the Americans with Disabilities Act of 1990 require that the PGA Tour allow a disabled contestant to use a golf cart in its professional tournaments when all other contestants must walk?  Answering in the affirmative (in PGA Tour, Inc. v. Martin), Justice Stevens’s opinion for the Supreme Court determines that walking is not “fundamental” to tournament golf.  An excerpt from Justice Scalia’s classic dissent:

“If one assumes … that the PGA TOUR has some legal obligation to play classic, Platonic golf … then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States … to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a ‘fundamental’ aspect of golf.  Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question.”

May 31

1990—In an otherwise insignificant case (Shriners Hospitals v. Zrillic), Florida chief justice Rosemary Barkett, completely botching case law governing the federal Equal Protection Clause, asserts that “underinclusive or overinclusive classifications fail to meet even the minimal standards of the rational basis test” and, on that misunderstanding, invalidates a six-month statutory time period.  There is, she says, “no rational distinction” between a period of “five months and twenty-eight days” and a period “a few days longer.”  Somehow that same insight escaped her in a separate case (LeCroy v. State) in which she concluded that the Constitution imposes a bright-line age minimum for offenses that can result in the death penalty. 

Barkett’s proposition would go far towards transforming supposedly deferential rational-basis review into strict scrutiny and thus invites judicial activism.  Indeed, because it is difficult to imagine that the review would be applied consistently (few laws would survive if it were), her approach would lead to arbitrary and selective application.  (In 1994, President Clinton appoints Barkett to the Eleventh Circuit.)

June 1

1992—In Davis v. Davis, the Tennessee Supreme Court decides a battle between a divorcing couple over rights to their frozen embryos stored in a fertility clinic.  Writing for the court, Justice Martha Craig Daughtrey undertakes a lengthy excursus that culminates in an ad hoc balancing test weighted strongly in favor of destruction of the human embryos:  “Ordinarily, the party wishing to avoid procreation should prevail.…”  Daughtrey extrapolates a state constitutional “right of procreational autonomy” from the provisions of the state constitution that protect freedom of worship, that prohibit unreasonable searches and seizures, that guarantee freedom of speech, and that regulate the quartering of soldiers in homes.  She then relies on skimpy psychotherapy articles to concoct a right of a voluntary “gamete-provider” to avoid unwanted genetic parenthood.

The obvious explanation for Daughtrey’s various frolics and detours is that Davis was decided weeks before the U.S. Supreme Court was expected—wrongly, as it turns out—to use its Planned Parenthood v. Casey decision to overturn Roe v. Wade and to restore abortion policy to the democratic processes.  By her opinion, Daughtrey contrives to establish a Tennessee version of Roe.  (In 1993, President Clinton appoints Daughtrey to the Sixth Circuit.)


For an explanation of this recurring feature, see here. 


Tags: This Day in Liberal Activism

Greenhouse on 5-4 Rulings


Linda Greenhouse has an interesting but curious article addressing the question, “Where have all the 5-to-4 decisions gone” this term?  I’m inclined to agree with Jonathan Adler’s explanation on the Volokh Conspiracy, the essence of which is that it’s the previous Court term, not this term, that is the outlier.


It won’t surprise readers that Greenhouse claims—or, rather, asserts—that “the conservative bloc [is] so clearly in control”; that she finds occasion to couple the cheap shot that Judge Posner took at Chief Justice Roberts in his new book (see my point 2 here) with the too sweeping declaration that Roberts “undoubtedly admires” Posner; and that she implicitly credits Justice Ginsburg’s political grandstanding on last year’s Ledbetter case—grandstanding that Greenhouse herself celebrated—as possibly affecting the Court’s opinions this term in employment-discrimination cases.


What I find curious about the article—and implausible (except as an insincere tactic on the part of justices)—is Greenhouse’s suggestion that the supposedly “beleaguered liberal bloc” may have “capitulat[ed].”*  Why, when the Court is so divided, when Justice Kennedy’s vote is still available to them on so many matters, and when there’s a real prospect of a Democratic president making the next five or six appointments, would the liberal judicial activists be giving up?


In any event, no one should be lulled into imagining that the cause of judicial restraint is on the verge of enduring victory at the Supreme Court.  As Stuart Taylor has outlined, Supreme Court appointments by a President Obama (or Clinton) could well lead to a rash of liberal judicial activism on a broad range of matters—same-sex marriage, taxpayer-funded abortions, cloning, the death penalty, barring school-choice plans that include religious schools, and more.


* More precisely, Greenhouse says that it “would be too simplistic an explanation to say that the liberal justices, at least some of them, have simply given up,” but she then refers to “simple liberal capitulation,” together with “liberals using their limited leverage,” to explain a possible “bit of movement on both sides.”  So I read her to mean that “simple liberal capitulation” may well be one factor in explaining the Court’s term but that it would be “too simplistic” to regard that as the only factor.

Tags: Whelan

“Don’t Ask, Don’t Tell”? Or Don’t Read, Don’t Think?


Two days ago, a Ninth Circuit panel ruled that the Supreme Court’s 2003 decision in Lawrence v. Texas requires that the statute—colloquially known as “Don’t Ask, Don’t Tell”—governing homosexuals in the military “must satisfy an intermediate level of scrutiny under substantive due process.”  (This being the Ninth Circuit, the dissenter would have gone further and required strict scrutiny.)


I have a lot of sympathy for anyone forced to try to make sense of Justice Kennedy’s majority opinion in Lawrence, which I described in this Yale Law Journal (Pocket Part) essay as “unfettered moral philosophizing” that “reads like a cruel parody of the modern make-it-up-as-you-go-along judicial decision-making that hides behind the euphemism of the ‘living Constitution.’”  But there’s strong evidence that the Ninth Circuit panel did not even carefully read the opinion.  Specifically, the panel asserts that the Court in Lawrence “did not mention or apply the post-Bowers [v. Hardwick] case of Romer v. Evans, 517 U.S. 620 (1996), in which the Court applied rational basis review to a law concerning homosexuals.”  In fact, Kennedy’s majority opinion spends two full paragraphs presenting Romer as the second of two major post-Bowers cases that cast “even more doubt” on the holding in Bowers, and it later summarizes its conclusion that Bowers had “sustained serious erosion” from Romer.  How could the panel judges and their law clerks have failed to take note of this?  And what does that say about the quality of their decisionmaking?


On the Volokh Conspiracy, Eugene Volokh has separately (in point 2 here) faulted the panel for the larger failure of neglecting even to consider whether the military context calls for a lower standard of scrutiny.

Tags: Whelan

Stuart Taylor on Obama’s Supreme Court Appointees


In that same National Journal column on the California marriage ruling (temporarily available here), Stuart Taylor soundly warns that the Supreme Court appointments that a President Obama would make present a real threat of further “displacing democratic choices with made-up constitutional law” and of “strangulation” of representative government:

Based on the wish lists published by liberal judges and law professors, justices who fit Obama’s description [of his model appointee] might well invent federal constitutional rights not only to gay marriage but also to Medicaid abortions, physician-assisted suicide, human cloning, and perhaps free medical care, food, and housing for poor people; strike down the death penalty (as Stevens recently advocated) and laws making English the official language; ban publicly funded vouchers for poor kids to attend parochial schools; bless ever-more-aggressive use of racial and gender preferences; and more.

Tags: Whelan

Stuart Taylor on California Marriage Ruling


In his National Journal column (temporarily available here), Stuart Taylor, who “wholeheartedly support[s] gay marriage,” condemns last week’s California supreme court decision on marriage as “an unfortunate exercise in judicial imperialism.”  Some excerpts:


[T]he California court’s 121-page opinion was dishonest. This was most evident in its ritual denial of the fact that it was usurping legislative power: “Our task … is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership … but instead only to determine whether the difference in the official names of the relationships violates the California Constitution [emphasis in original].”

This was a deeply disingenuous dodge, if not a bald-faced lie, to conceal from gullible voters the fact that the decision was a raw exercise in judicial policy-making with no connection to the words or intent of the state constitution. It is inconceivable that anyone but a supporter of gay marriage “as a matter of policy” could have found in vague constitutional phrases such as “equal protection” a right to judicial invalidation of the marriage laws of every state and nation in the history of civilization….

The California court’s majority descended into especially slick sophistry when it suggested that the many gay-rights reforms that the state’s elected branches had already adopted were not a reason to let the democratic process work but rather a mandate for judicial imposition of gay marriage. The message to voters in other states may be: If you give the judges an inch on gay rights, they will take a mile.

Also disingenuous was the majority’s vague dismissal of the powerful argument by opponents of judicially imposed gay marriage that the made-up constitutional principle underlying the decision would also–if seriously applied–require the state to recognize polygamous and incestuous marriages among adults.

Chief Justice Ronald George’s majority opinion exuded impatience bordering on contempt for the government by the people that is the foundation of our democratic system. California’s voters and elected branches had already made great progress toward full legal equality for gay couples. They enjoyed all of the state-law rights and privileges of marriage except the name, which 61.4 percent of the voters had reserved for heterosexual couples in a 2000 ballot initiative. California’s domestic-partnership laws were more generous to gays than the laws of almost all other states and almost all nations.

But to the majority, this domestic-partnership-but-not-gay-marriage compromise–also advocated by Barack Obama, Hillary Rodham Clinton, and John McCain–was “a mark of second-class citizenship.”…   

Tags: Whelan

McConnell: Reid Failed to Honor His Commitment


In a Senate floor statement today, Republican leader Mitch McConnell hammered majority leader Harry Reid for failing to deliver on his commitment to confirm at least three federal appellate nominees by Memorial Day.  McConnell contrasted Reid’s failure with former majority leader Trent Lott’s fulfillment of a commitment to vote on Clinton nominees in 2000.  Unlike Reid, Lott was “true to his word” and “understood that commitments in this body are not to be taken lightly, especially when they are made by the Majority Leader.”


McConnell particularly faulted Reid for trying to move recent Sixth Circuit nominee (and former Clinton nominee) Helene White—whose ABA report has still not been received—instead of nominees, such as Peter Keisler (D.C. Circuit) and Robert Conrad (Fourth Circuit), much further along in the process:  “These nominees were, in effect, on the two-yard line, and could easily have been picked and confirmed.”  And, signaling that the battle will escalate, McConnell closed by stating that Republican senators’ “frustration … will manifest itself in the coming days, and will persist until we get credible evidence that the Majority will respect Minority rights and treat judicial nominees fairly.” 

Tags: Whelan

Cornyn: Reid’s Broken Promise “Inexcusable”


Senate Judiciary Committee member John Cornyn is forcefully condemning majority leader Harry Reid’s failure to live up to his promise to “do everything within [his] power” to confirm three federal appellate nominees by Memorial Day: 

It is inexcusable that the Majority Leader broke his commitment to confirm three judicial nominees before Memorial Day, despite knowing there were long-pending nominees who could be confirmed before the deadline. He had ample opportunity to honor his pledge, yet his actions failed to match his words….   I fear that the Majority Leader’s unwillingness to confirm judges will have negative consequences not only for our federal judiciary, but the Senate’s broader agenda. 

This last sentence of Senator Cornyn’s calls to mind Senator Specter’s previous threat to shut down the Senate’s proceedings if the Democratic obstruction of judicial nominees continues.  Let’s hope that lots of other Republican senators are ready to make Democratic senators pay a price for their obstruction.

Tags: Whelan

Editorials on Child-Pornography Ruling


In its house editorial yesterday criticizing the Supreme Court’s child-pornography ruling, the New York Times asserts that the ruling


creates a bizarre contradiction. Fake child pornography is protected, but marketing fake child pornography is not. As Justice David Souter noted in dissent, it makes no sense to criminalize proposing to sell items that are themselves constitutionally protected.


The Times’s editorialists fail to acknowledge, much less grapple with, the majority opinion’s response to this objection:


[A]n offer to provide or request to receive virtual child pornography is not prohibited by the statute.  A crime is committed only when the speaker believes or intends the listener to believe that the subject of the transaction depicts real children.…  Simulated child pornography will be as available as ever, so long as it is offered and sought as such, and not as real child pornography.…  We fail to see what First Amendment interest would be served by drawing a distinction between two defendants who attempt to acquire contraband, one of whom happens to be mistaken about the contraband nature of what he would acquire.  Is Congress forbidden from punishing those who attempt to acquire what they believe to be national-security documents, but which are actually fakes?  To ask is to answer.


(Interested readers will find the back-and-forth between the majority and the dissent on this point on pages 17-18 of the majority opinion and pages 10-13 of the dissent.)


As is generally the case, the Washington Post house editorial (emphasis added) displays far better sense than the Times’s:


By narrowly targeting only those who have or purport to have images of real children, lawmakers not only averted constitutional problems but also sought to quash demand for such material.…  The court’s decision to approve the Protect Act gives law enforcement officials a powerful tool to combat the scourge of child pornography that has only grown since the advent of the Internet.


As, of course, does NRO in its excellent editorial today.

Tags: Whelan

Go Ahead, Make Our Day


James Andrew Miller, a former aide to Senator Howard Baker, writes today in the Washington Post that Barack Obama could “foster party unity” and best employ the talents of Hillary Clinton not by making her his running mate, but by publicly promising her the first Supreme Court seat that comes open while he is president.  The thought comes unbidden to mind that Miller, presumably a Republican, is making mischief with this suggestion.  But he seems to mean it seriously as an idea that is good for the Democrats.  On the contrary, this would be one of the biggest gifts that Obama could give John McCain and the Republicans.

Miller writes: “If Obama were to promise Clinton the first court vacancy, her supporters would actually have a stronger incentive to support him for president than they would if she were going to be vice president.”  This might be true; it strikes me as plausible but not certain.  But what is certain is that such a public announcement on Obama’s part would work wonders in energizing the base of the Republican Party behind John McCain.  Imagine that McCain gave a speech a week on the subject of the judiciary and the Constitution, each three times as good as the speech he gave earlier this month–indeed, each better than the one before.  That would have roughly the effect of a “Clinton for SCOTUS” promise made by Obama.  Offhand references on a regular basis to a “bargain to sell out the Constitution for votes” would be all McCain would have to make.

Perhaps anticipating an objection like “won’t she just be a left-wing Harriet Miers?” Miller writes:

Even Clinton detractors have noted her remarkable mental skills; she would be equal to any legal or intellectual challenge she would face as a justice. The fact that she hasn’t served on a bench before would be inconsequential, considering her experience in law and in government.

Presumably she could study up, under the tutelage of former “distinguished lecturer in constitutional law” Barack Obama.  There are, of course, multiple examples of politicians without judicial experience becoming successful Supreme Court justices–John Marshall and Earl Warren being the most obvious.

But Miller misses the most obvious blunder such a move would commit.  Promising the Democratic Party that he would appoint Hillary Clinton to the Supreme Court would put Barack Obama on record as committed to the proposition that the Court is just another political institution like any other.  Its vacancies would be viewed as political chips, to be wagered in a presidential campaign without regard to legal or constitutional categories of thought.  Obama would be marked as profoundly unserious about one of a president’s weightiest responsibilities.  And it’s not simply the qualifications of Clinton that would be the issue; a Clinton nomination in the ordinary course of a vacancy arising during an Obama administration would be far less objectionable (though her confirmation would not at any time be the cakewalk Miller predicts).  It would be the instrumentalization of a Supreme Court vacancy as a tactic in a political campaign that would, rightly, strike countless voters in both parties as appalling.

It would be a field day for McCain and the GOP.  Bring it on.

Fourth Circuit Nominee Confirmed


A couple hours ago, the Senate unanimously confirmed the nomination of Virginia supreme court justice G. Steven Agee to the Fourth Circuit.  Nominations to the four remaining Fourth Circuit vacancies—out of a total of 15 seats—remain pending.


The Senate has now confirmed two appellate nominees this year.  By contrast, the Republican-controlled Senate confirmed eight of President Clinton’s appellate nominees in his last year in office.


Meanwhile, my skepticism about majority leader Harry Reid’s promise to “do everything within my power to get three judges approved to our circuits before the Memorial Day recess” appears likely to be vindicated, as Reid is now blaming Republicans for a slowdown on the two Sixth Circuit nominees in Michigan who were the subject of a deal between the White House and Senator Levin.  But last I heard—and consistent with this ABA report as of a week ago—the ABA judicial-evaluations committee still hadn’t completed its review of Levin’s former cousin-in-law, Helene White.  Democrats had previously vowed not even to hold a hearing on a nominee, much less have a vote on final confirmation, before receiving the ABA’s rating.  In any event, if Reid were serious about his promise, he could work to move other nominees.

Tags: Whelan

Supreme Court Status Check


With yesterday’s rulings, the Supreme Court has now disposed of 38 of the 70 cases on this term’s argument calendar.  I’m relying on the tables in this report prepared and maintained by attorneys at Mayer, Brown, Rowe & Maw.  (The current version of the report is from late April; my calculation adds in the May rulings.)  The Court’s term is expected to conclude the week of June 23, so nearly half the Court’s rulings for the term will be rendered over the next five weeks.


Because opinion assignments are roughly even for each argument session, the month-by-month tables in the Mayer, Brown report sometimes enable intelligent guesswork as to who will be writing the majority opinions in remaining cases.  For example, only one case (or, more precisely, one pair of consolidated cases) remains from the December argument session—the much-watched Boumediene v. Bush (and Al Odah v. United States) concerning the Military Commission Act of 2006 and Guantanamo detainees—and only Justices Kennedy and Souter have yet to write lead opinions for that session.  Because Kennedy is likely the swing vote in that case, because Souter was the only justice to write two lead opinions in the preceding session, and because it’s difficult to imagine either the Chief Justice or Justice Stevens assigning Boumediene to Souter, it’s highly likely that Justice Kennedy is writing the opinion in Boumediene

Non-argument sessions at which rulings may be announced are scheduled for next Tuesday (the day after Memorial Day) and each of the first four Mondays in June.  The Court typically announces some additional sessions in mid- or late June.  On the days on which ruling are announced, SCOTUSblog is usually quickest to give the bottom line and to provide links to the opinions.

Tags: Whelan

Benjamin Wittes on California Marriage Ruling


On the New Republic’s website, Benjamin Wittes, who supports same-sex marriage, criticizes the California supreme court’s ruling and points out that the court majority has effectively branded Barack Obama an anti-gay bigot for his position supporting civil unions and opposing same-sex marriage.  (Or, rather, Obama’s professing to oppose same-sex marriage while somehow “respect[ing]” the court’s ruling and committing to appoint the sort of justices who would invent a federal constitutional right to same-sex marriage.)  An excerpt:


Another cost [of the California supreme court’s “so far outflank[ing] our political system”] is that slow drip-by-drip accretion of power to courts, that steady undermining of the right of people to govern themselves. In California, the deprivation of that right is exquisitely on display, for the compromise the court upset involved decades of negotiation and movement. The nucleus of California’s domestic partnership law dates from the late 1970s. Over time, it has grown more generous, by 2006 including all of the rights and obligations of marriage. In 2000, however, the people of California voted overwhelmingly to limit marriage itself to opposite-sex unions. The legislature has twice voted to extend marriage to gay couples–and Governor Schwarzenegger has twice vetoed the bill. The current arrangement, in short, reflects a series of evolving compromises set against the backdrop of a quickly developing social consensus concerning the value and honor of same-sex relationships–a process that the court treated as just so much bother on the way to a self-evident truth. Once upon a time, this bother had a name. We called it democracy….

In the long run, … it matters a lot how we make marriage equality a reality. It matters whether we brand the people who want to proceed incrementally as discriminators. It matters whether we take the time to persuade them democratically of what we believe. And it matters if we think so little of them that we ask judges to flip a switch and change the world and damn our fellow citizens if they dislike it.


I suspect that the best way for most supporters of same-sex marriage to come to share Wittes’s appreciation of the tough work of democratic persuasion would be for Obama to lose California, and lose the presidential election, this November as the initiative to amend the state constitution to ban same-sex marriage passes by a large margin.  (I’m making no predictions here.)

Tags: Whelan

Toobin on McCain’s Speech


A follow-up to my post earlier today.  Let’s look at some of Jeffrey Toobin’s distortions in his decoding of John McCain’s recent speech on judges.


Discussing McCain’s reference to the Court’s 2005 ruling in Roper v. Simmons, Toobin finds it telling that “McCain did not reveal the subject matter of this supposed judicial outrage,” which, Toobin says, was that “a seventeen-year-old boy murdered a woman after breaking into her home, and was sentenced to death.”  But it’s Toobin’s summary—suggestive of a mere burglary gone awry—that hides far more than it reveals.  From my July 2005 testimony to the House Judiciary Committee, here’s a fuller account, with quotations from Justice Kennedy’s majority opinion:


When he was 17, Christopher Simmons planned, instigated, and committed a brutal murder. “Before its commission Simmons said he wanted to murder someone. In chilling, callous terms he talked about his plan, discussing it for the most part with two friends …. Simmons proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they could ‘get away with it’ because they were minors.”

In the middle of the night, Simmons and a friend “entered the home of the victim, Shirley Crook, after reaching through an open window and unlocking the back door. Simmons turned on a hallway light. Awakened, Mrs. Crook called out, ‘Who’s there?’ In response Simmons entered Mrs. Crook’s bedroom, where he recognized her from a previous car accident involving them both. Simmons later admitted this confirmed his resolve to murder her.”

“Using duct tape to cover her eyes and mouth and bind her hands, the two perpetrators put Mrs. Crook in her minivan and drove to a state park. They reinforced the bindings, covered her head with a towel, and walked her to a railroad trestle spanning the Meramec River. There they tied her hands and feet together with electrical wire, wrapped her whole face in duct tape and threw her from the bridge, drowning her in the waters below.”


Toobin recites Kennedy’s list of the only other countries to execute “juvenile” offenders and adds, “According to McCain, the United States apparently belongs on this dismal list.”  No.  The heart of  McCain’s critique is that within the bounds of the Constitution the people of each state, through their legislators—and not the Supreme Court—ought to be setting criminal penalties.  Further, as Justice Scalia explains in his dissent, Kennedy’s “startling conclusion” that juries “cannot be trusted with the delicate task of weighing a defendant’s youth” “undermines the very foundations of our capital sentencing system.” 


In his closing paragraph, Toobin, echoing Ronald Dworkin’s metaphor (as well as his hysteria), warns of a four-justice “phalanx that is more radical than any that the Court has seen since F.D.R.’s appointments.”  Among his contentions in the one sentence of supporting argument that he musters:  “the Roberts Court has crippled school-desegregation efforts” (so much for the distinction between desegregation and racial quotas) and “approved a federal law that bans a form of abortion” (it’s best, I suppose, not to let New Yorker readers in on the fact that the ruling was plainly correct, on what that “form of abortion” was, on how many prominent Democrats voted for the ban on partial-birth abortion, and on how opponents of the ban (including Toobin) recklessly spread lies about it).


Toobin is right that the stakes in the upcoming presidential election are “very, very high” for the Supreme Court.  But he obscures what the stakes are.  If Obama wins, he will appoint liberal judicial activists who will continue the Left’s project of depriving American citizens of their powers of representative government.  Invention of a federal constitutional right to same-sex marriage is only one float in the very real parade of horribles that would ensue.  If McCain wins, I am hopeful that he will appoint justices who will restore abortion to the democratic processes and practice judicial restraint generally (while of course enforcing those rights that are in the Constitution and are justiciable).  If so, Toobin and his New Yorker readers will be able to seek to adopt their preferred policies through their representatives.  In short, it’s Obama, not McCain, who has the radical vision of judicial power.

Tags: Whelan


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